Is the NDAA illegal?

A group called StopNDAA.org has filed a lawsuit against the federal government to block the National Defense Authorization Act (NDAA), which, they claim, gives the president power to arrest and indefinitely detain U.S. citizens without evidence.

The state of Virginia has declared the NDAA illegal. Arizona, Tennessee, Washington, and Cherokee County, Kansas have passed or are developing similar legislation, which will render it unlawful for local officials to cooperate with federal investigators or U.S. armed forces trying to arrest citizens under the NDAA. These challenges are being made under the 10th amendment to the U.S. Constitution, which gives states ultimate sovereignty. A group called the Tenth Amendment Center is offering local governments assistance in nullifying the NDAA in their districts. Severe criticism of the NDAA has been leveled by the American Civil Liberties Union (ACLU) and the Bill of Rights Defense Committee. This is a very serious set of events that is very much underreported in the U.S. media.

The NDAA was signed into law by President Obama on December 31, 2011 and went into effect on March 1, 2012. Although the NDAA is designed to aid in preventing terrorism, critics say that the language is so vague that any U.S. citizen can be targeted. StopNDAA.org notes that political activists are especially vulnerable.

What Does the NDAA Say?

There has been some uncertainty as to whether or not the NDAA actually does potentially apply to U.S. citizens, and critics believe that this confusion may itself serve to disarm public concern. Nevertheless, there may be some credence to claims that the NDAA merely codifies already existing laws, for example, the 2001 Authorization for Use of Military Force (AUMF) which ended the rights to judicial due process of "enemy combatants," defying the Geneva Conventions, and the 2001 Patriot Act, which allows the federal government to ignore privacy rights and seize papers without a warrant.

The Bush administration argued that any U.S. citizen could be considered an "enemy combatant" and this was a subject of much legal debate with regard to a Guantanamo Bay inmate. In a 2009 legal brief, the Obama administration retired the term "enemy combatant," but not the idea. That brief introduced the language that is now the subject of debate about the NDAA. Individuals, formerly known as "enemy combatants," are now known as "covered persons." The NDAA defines a covered person as someone who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces. It is the vagueness of the language that has groups like StopNDAA.org, whose members include journalist Chris Hedges, activist Daniel Ellsberg, and professor Noam Chomsky, concerned.

Some claim that "waivers" demanded by President Obama soften the bill, but critics note that the waivers do not prevent covered persons from being arrested and detained under the act. Only the requirement that they must be arrested is waived. However confusing the NDAA itself may be as a document, President Obama attached a signing statement that shows how it may be interpreted, or at least how he interprets it. In his statement he promises not to use the NDAA to arrest U.S. citizens or to deny them due process, making it clear that he believes that he, and all future presidents, do have that power.

How is the NDAA being interpreted?

When President Obama ordered the assassination of U.S. citizen Anwar al-Awlaki earlier in 2011, al-Awlaki was already treated as if he no longer had rights—because he worked with terrorist groups. Most U.S. citizens have nothing to fear because they do not associate with al-Qaeda in any way; most people have never and will never commit a "belligerent act." However, the concern is that if due process is denied to all suspects, then no evidence of any such associations or acts will be necessary to make anyone a "covered person" under the law. At some point in our political future, there may be a corrupt executive arm that could use the NDAA to get rid of political opponents or other inconvenient persons.

Although we can only speculate how these terms might be interpreted in the future, we can find some examples of how existing legislation is currently being put into practice by a government agency. The U.S. Department of Homeland Security has supported a study to help officials identify suspected terrorists. Although these reports are informational only and do not necessarily reflect the view of the Department of Homeland Security, the findings have been written into an instructional brochure and distributed to those who will be facilitating arrests of "suspects." The targeted groups include, but are not limited to "extremists" who are: "Islamists" or "anti-global, suspicious of centralized federal authority, reverent of individual liberty…" or "regionally concentrated groups with a history of organized political autonomy with their own state…" or "obsessively focus[ed] on very specific or narrowly-defined causes (e.g., anti-nuclear)…" or "[have] conspiracy theories about Westerners (e.g. the CIA arranged for 9/11 to legitimize the invasion of foreign lands)."

Well-established activist groups that peacefully and legally challenge and question government actions and policies, such as Greenpeace or Architects and Engineers for 9/11 Truth, are clear targets in these descriptions. Muslims, members of the libertarian party, as well as legislators in the states of Virginia, Arizona, Tennessee, Washington and Kansas might also be included in this too-vague description of potential terrorists.

What is surprising about these Homeland Security informational documents is that they focus on U.S. citizens rather than on foreign terrorists. This may be due to the fact that, according to Senator Lindsey Graham (R SC), a supporter of the NDAA, the "War on Terror" has come home and "the homeland is [now] part of the battlefield." Although Muslims are not the focus of the study concerning likely terrorists, Muslim U.S. citizens in various places in the Northeastern United States are currently under regular surveillance by the NYPD, supported by federal funds.

Delegate Bob Marshall, the primary sponsor of the Virginian NDAA nullification bill, released this statement, During World War II, the federal government incarcerated tens of thousands of loyal Japanese Americans in the name of national security. By this bill, Virginia declares that it will not participate in similar modern-day efforts.